Robert Woo, Sr., Complainant,v.Janet Reno, Attorney General, Department of Justice, (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity CommissionDec 20, 2000
01984466 (E.E.O.C. Dec. 20, 2000)

01984466

12-20-2000

Robert Woo, Sr., Complainant, v. Janet Reno, Attorney General, Department of Justice, (Federal Bureau of Investigation), Agency.


Robert Woo, Sr. v. Department of Justice

01984466

December 20, 2000

.

Robert Woo, Sr.,

Complainant,

v.

Janet Reno,

Attorney General,

Department of Justice,

(Federal Bureau of Investigation),

Agency.

Appeal No. 01984466

Agency No. F-94-4621

DECISION

INTRODUCTION

Complainant timely initiated an appeal from a final agency decision

concerning his complaint of unlawful employment discrimination in

violation of Title VII of the Civil Rights Act of 1964 (Title VII), as

amended, 42 U.S.C. � 2000e et seq.<1> The appeal is accepted pursuant

to 29 C.F.R. � 1614.405. For the following reasons, the Commission

AFFIRMS the agency's final decision.

ISSUES PRESENTED

The issue presented herein is whether complainant has proven, by

preponderant evidence, that he was discriminated against on the bases

of national origin (Chinese American) and reprisal (prior EEO activity)

when he was subjected to an agency investigation in April 1994, and

placed on administrative leave in July 1994.

BACKGROUND

Complainant, employed by the agency as a Special Agent at the time of the

alleged discriminatory events, filed a formal complaint on September 13,

1994, in which he alleged what has been identified as issues presented.

The agency accepted the complaint for investigation. At the conclusion

of the investigation, the agency informed complainant of his right to

choose a hearing before an EEOC Administrative Judge or a final agency

decision without a hearing. Complainant chose the latter. Consequently,

the agency issued a decision finding no discrimination. It is from that

decision that complainant appeals.

Information in the file reveals that, in October 1991, complainant

was assigned to an Interstate Transportation of Stolen Property (ITSP)

investigation concerning the theft of mainframe computers. In November

1992, while still acting as the primary undercover investigator in

the above-referenced investigation, complainant was contacted by a

confidential informant who indicated that he knew people who were in

possession of high tech property that had been stolen from a local

electronics company. In support of his information, the informant

provided complainant with a circuit board he had received from the people

who had allegedly obtained it unlawfully from a local manufacturer.

After corroborating with officials from the victim manufacturer that

the product was theirs and had been stolen, complainant presented

an investigative plan to his supervisor. This plan called for the

complainant to purchase, in an undercover capacity, some of the stolen

property as evidence. The supervisor informed complainant that the agency

did not have the money to purchase the stolen property. Complainant then

indicated to his supervisor that the manufacturer might be willing to

supply some of the funds needed for the purchase. Thereafter, complainant

conferred with the manufacturer's officials and they agreed to supply

a certain amount of the funds needed to purchase the stolen property.

With the money supplied by the manufacturer, complainant's informant

purchased a circuit board from the party possessing the stolen product.

The agency determined that the circuit board had been unlawfully

obtained from the electronics company. According to the complainant,

he placed the circuit board in the FBI evidence storage facility.

He also discussed the evidence purchase with his supervisor and told his

supervisor that the manufacturer had provided the funds for the purchase.

Complainant's supervisor did not give him any instructions regarding the

remainder of the manufacturer's funds while it was being held pending

further purchases and additional undercover activity.

The investigation continued but complainant's informant had to

be relocated by the agency, for his protection, due to his role in

another investigation. Because the informant was not readily available,

complainant's investigation slowed and was eventually closed. According

to complainant, on April 28, 1994, he reimbursed the manufacturer

the full amount that had been provided by them in connection with the

investigation.

On April 28, 1994, complainant was informed by two supervisory special

agents that he was the subject of an investigation by the Office of

Professional Responsibility (OPR). The supervisory special agents

informed the complainant that the investigation concerned his use of

the manufacturer's funds for undercover operation activities in the

electronic product theft investigation. Suspecting discrimination,

complainant consulted with an EEO counselor on June 1994. On July 26,

1994, he was placed on administrative leave. On November 12, 1997,

complainant was removed from the FBI because the OPR investigation

concluded that he had converted the manufacturer's funds to his personal

use and had exhibited a �lack of candor� during the investigation.<2>

Complainant believes he was discriminated against when he was denied

funding, and therefore had to seek outside support, in order to execute

his investigative plan. To support this allegation he stated that his

Caucasian counterparts were routinely given funds to carry out their

investigations. He also stated that shortly after he was denied funding,

his supervisor (Caucasian) was given funds to conduct an investigation

in New York. In response, the agency stated that the type of equipment

for which complainant sought funds was very expensive and prohibitive

for the FBI to purchase as evidence; therefore, no funds were available

for evidence purchases. The agency also stated that during the period

in which complainant was denied funding, no proactive cases were pursued

due to limited resources. Complainant's supervisor stated that he did

not provide any special agent with additional resources to pursue their

investigation. Complainant's supervisor admitted that he did receive

funding to travel to New York regarding one of his investigations. But

according to him, that investigation only cost $1,500.00. The Commission

notes that this investigation did not involve the purchase of evidence.

The agency also presented evidence which indicates that other agents

were denied funding for proposed evidence purchases.

ANALYSIS AND FINDINGS

In the absence of direct evidence of discrimination, the allocation of

burdens and order of presentation of proof in a Title VII case alleging

discrimination is a three-step process. McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation

for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),

aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to

retaliation cases). First, complainant must establish a prima facie

case of discrimination by presenting facts that, if unexplained,

reasonably give rise to an inference of discrimination; i.e., that a

prohibited consideration was a factor in the adverse employment action.

McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a

legitimate, nondiscriminatory reason(s) for its actions. Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency

is successful, then the

complainant must prove, by a preponderance of the evidence, that

the legitimate reason(s) proffered by the agency was a pretext for

discrimination. Id. at 256.

Although the initial inquiry in a discrimination case usually focuses on

whether the complainant has established a prima facie case, following

this order of analysis is unnecessary when the agency has articulated a

legitimate, nondiscriminatory reason for its actions. See Washington

v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

In such cases, the inquiry shifts from whether the complainant has

established a prima facie case to whether he has demonstrated by

preponderance of the evidence that the agency's reasons for its actions

merely were a pretext for discrimination. Id.; see also United States

Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717

(1983). In this case, the agency has articulated a legitimate,

nondiscriminatory reason for its actions. Specifically, the agency

stated that complainant was investigated, and subsequently placed on

administrative leave, because of questions regarding his use of funds

that he received from the manufacturer. The agency also stated that of

the six employees that were placed on administrative leave pending an

investigation regarding the illegal use of third party funds, complainant

was the only Asian-American.

Because the agency has proffered a legitimate, nondiscriminatory reason

for the alleged discriminatory events, complainant now bears the burden

of establishing that the agency's stated reason is merely a pretext for

discrimination. Shapiro v. Social Security Administration, EEOC Request

No. 05960403 (December 6, 1996). Complainant can do this by showing

that the agency was motivated by a discriminatory reason. Id. (citing

St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)). In this case,

complainant has failed to meet that burden. In attempting to prove that

the reason offered by the agency was pretextual, complainant provides

scores of examples of discriminatory events to which he has allegedly

been subjected to in the past. He did not, however, attempt to disprove

(or even deny) the agency's assertion regarding the improper use of the

manufacturer's funds. Instead, he stated that if the agency had not

discriminated against him by denying him the funds necessary to conduct

the investigation, then he would not have had to seek outside funding from

the manufacturer. He also stated that he reimbursed the manufacturer

on April 28, 1994, the same day he learned of the OPR investigation.

We find that the timing of the reimbursement was not coincidental.

For those reasons, we also find that complainant has failed to prove

that the agency's actions were motivated by discriminatory animus.

CONCLUSION

Therefore, after a careful review of the record, including complainant's

contentions on appeal, and arguments and evidence not specifically

addressed in this decision, we AFFIRM the final agency decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed

with the office of federal operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)

You have the right to file a civil action in an appropriate United States

District Court within ninety (90) calendar days from the date that you

receive this decision. If you file a civil action, you must name as

the defendant in the complaint the person who is the official agency head

or department head, identifying that person by his or her full name and

official title. Failure to do so may result in the dismissal of your

case in court. "Agency" or "department" means the national organization,

and not the local office, facility or department in which you work. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

December 20, 2000

__________________

Date

1 On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in

the administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2Complainant appealed the removal to the Merit Systems Protection Board.

As such, the removal will not be addressed in this decision.